of nationalism : using comparative law for a better ...ripublication.com/ijhss17/ijhssv7n1_03.pdfof...

International Journal of Humanities and Social Sciences.

ISSN 2250-3226 Volume 7, Number 1 (2017), pp. 23-33

© Research India Publications

http://www.ripublication.com

Understanding The Concept Of Nationalism : Using

Comparative Law For A Better Indonesian

Immigration System In Handling The Illegal

Immigrant

Wahyu Widodo, Sapto Budoyo and Maryanto

Universitas PGRI Semarang, Indonesia.

Abstract

Illegal immigrant has become a major problem in many countries. On closer

look, It is actually ties to the concept of nationalism. Indonesia even though

still lacking in gross domestic product but because of its potential natural

resources the risk of illegal immigrant In Indonesia may as well be calculated.

The main problem is why Indonesia become the Target of Illegal Immigration

and How to deal with the illegal immigration phenomena analyzed using the

paradigm of constructivism with the method of qualitative research and

Grounded theory study approach, which is based on primary data in the form

using comparative law and secondary data of relevant literature and tertiary

data of bibliography processed using data triangulation for a better results.

The result showed that the concept of nationalism is a neccessity in need to be

understandable deeply as it is actually acts as a natural defense against illegal

immigrant because nationalism itself are usually limited to one ethnic, cultural,

religious, or identity group, or that multinationality in a single state should

necessarily comprise the right to express and exercise national identity even

by minorities. The factor that drives the people to do immigration is internal

and external factor. The internal factor such as the nation’s wealthy land and

resources is the factor that drives them to com to the country and the external

factor or push factor are the factor that drives the immigrant out from their

mailto:[email protected]

24 Wahyu Widodo, Sapto Budoyo and Maryanto

countries such as seen in the rohingya ethnic cases and the suggestion that can

be given is that to get a better immigration law in handling the illegal

immigrant Indonesia must either ratify the 1951 International Convention and

the 1967 Protocol on the Status of Refugees, or presidential decree for the law

No. 37 of 1999 on Foreign Relations so that the government can immediately

identify whether or not one is a illegal immigrant or a refugees or asylum

seeker.

Keywords : Nationalism, Comparative Law, Immigrant, Indonesia

A. INTRODUCTION

Most countries in the world takes pride on itsPeople Nationalism, that is a complex,

multidimensional concept involving a shared communal identification with one's

nation oriented towards gaining and maintaining self-governance, or full sovereignty,

over a territory of historical significance to the group( Anna, 1998 ). Nationalism is

Important however it should not be biased with Fascism, that is a form of political

behavior marked by obsessive preoccupation with community decline, humiliation, or

victimhood and by compensatory cults of unity, energy, and purity, in which a mass-

based party of committed nationalist militants, working in uneasy but effective

collaboration with traditional elites, abandons democratic liberties and pursues with

redemptive violence and without ethical or legal restraints goals of internal cleansing

and external expansion(Robert, 2004)that gave birth to many tragedy such as

Holocaust.

Indonesia, as a country with distinct religion and races have been through many chain

of conflicts lead by race differences. Conflict like sampit war and the most prominent,

the persecution of tionghoa races in Indonesia. The tionghoa races are chinese-

descend in Indonesia Believed to first arrived in Indonesia since 3 BC and settled

around 7 AC.(Abdulah, 2001) Through the many years since their settlement in

Indonesia They have been an object of persecution as seen in many tragedies like the

May 1998 Riot or 1740’s Riot of Kali Angke where more than ten thousand

Tionghoans died.

In light of the recent events happened in Indonesia where many believe that in the

recent years, illegal immigrant especially from china come to Indonesia, though valid

evidence in the International mIgrant Report 2015 showed otherwise, it may be worth

to be an object of interest. Because of the globalization and the advance of technology

that makes the world seem to be borderless, In the now globalized world China as a

country with almost 9.24 trillion USD of gross domestic product as in 2013 as seen in

Understanding The Concept Of Nationalism : Using Comparative Law… 25

the world bank report 2013, wouldnt that makes almost impossible for its people to

view Indonesia as worthy enough country to do an illegal immigration?This

phonomenon may lead to, what is believed to be real, an overflow of work labour

from foreign countries or, nothing but the fear from Indigenous people of Indonesia.

Even though Indonesiais still lacking in gross domestic product but because of its

potential natural resources the risk of illegal immigrant In Indonesia may as well be

calculated.

B. UNDERSTANDING THE NATURE OF NATIONALISM

Perhaps the first and the foremost question that should be answered in order to find

how can Indonesia clean from illegal immigrant is why Indonesia become the target

for illegal immigration.But before answering that the author would like to explain as

to why the author mention about the persecution of Tionghoans in Indonesia.

Naturally, immigrants are usually secluded and feel uncomfortable in the alien land.

This happened as There are various definitions for what constitutes a nation, which

leads to several different strands of nationalism. Among them some believe that

citizenship in a state should be limited to one ethnic, cultural, religious, or identity

group, or that multinationality in a single state should necessarily comprise the right

to express and exercise national identity even by minorities.( will, 1995)

The same thing also happened during the Tionghoans first immigration to Indonesia

on 7 AC. This phenomenon even though a bit nefarious but at the same time act as a

natural defense to protect People’s Nationalism on one’s country as the most strong

bond that ties one’s nationalism are not only limited to the group’s strong historical

significance to the Land but also limiting the group’s strong historical significance to

one ethnic, cultural, religious, or identity group as seen in some Islamic Country like

UAE( Batty,2013) for example.

For histories people of certain ethnic inhabiting the land claimed that the land belong

to themselves thus creting a countries and creating a imaginary border we call

national border today. Newcomer who come later then are being unable to enter

because of citizenship system where only the people or its descendants who inhabit

the place before can savor and only those deemed worthy enough to the country can

become the citizen of the country as new people entering the countries means more

competition and more idealism and culture and more dangerously, illegal drugs

incoming that poses as a threat to its previous inhabitant’s neccessities fulfillment and


culture. This basically bring forth one major philosophic question from the author, is

that the nature of nationalism ?

The question has its own reason as to why it is called Philosophical Question as it

means that the question’s answers are in principle open to informed, rational, and

honest disagreement, ultimate but not absolute, closed under further questioning,

possibly constrained by empirical and logico-mathematical resources, but requiring

noetic resources to be answered.

The author itself believe even though that may be the nature of nationalism but at the

same time it too cannot escape the nature of a human that is Zoon Politicon, A

Popular Aristotlean term where he believed that human being has the tendency to

come together with other human beings to form a community (a polis). Only through

this polis a human being can fully flourish. It should be noted that this does not mean

that a human being cannot survive on its own (Aristotle realizes the human capability

of a solitary life). What Aristotle means is that a human being can only fulfil its full

potential when he lives in a polis.

From the line above it can be concluded that aristotle divide the nature of human into

individual and communal as even though human have different mindset, attitude,

physique they still have to fulfill basic neccessities like food, clothing, and shelter and

it can never be done alone. Humans As Individual being needs to prove its existence

because they are different whether in attitude, personality that makes the existence of

human as communal being makes even the highest community that is nation have

distinct ethnic, or religion as it is a form of how human needs to be both individual

being and communal being.

In the modern life, the neccessities have evolved where the communities stated above

has become really complex. The community mentioned are not only limited to a

country but many countries. Imagine countries as separate individual and the world is

a village and one have to help one another, that is the concept of a communal

nationalism.

The recent events that prove the existence of this communal nationalism can be seen

in how the countries handling the rohingya ethnic, or handling the refugee in general

therefore it can be proven that nationalism isnt more likely to be dominated only by

irrational negative impulses of monopolizing certain land with humanity set aside.

And this values, should be set as the cultural standard in this globalized world

(Martinkovicova, 2011).


After understanding the concept of Nationalism then the next object to discuss is what

makes Indonesia a target for illegal immigration. To better Understands that the

author divide the factor as to why Indonesia become the hotspot to illegal immigrant

in to internal factor and external factor

The Internal Factor

The Internal factor, that is the cause as to why Indonesia may or have become the

hotspot for illegal immigrant from the inside of the countries itself. In most cases,

People migrate for many different reasons. These reasons can be classified as

economic, social, political or environmental. The Internal Factor that is, a factor that

makes the immigrant want to come to Indonesia or Pull Factor. This factor, based on

BBC’s migration trends can be divided into :

1. Higher Employment

2. More Wealth

3. Better Services

4. Good Climate

5. Safer, Less Crime

6. Political Stability

7. More Fertile Land

8. Lower Risk From Natural Hazards

Now, based on the mentioned factor the author will analyze one by one. First based

on the data as of may 2014 recorded that the refugees and asylum seeker who come to

Indonesia, there is a total of 10 623 immigrants, 3,405 of whom are refugees, while

the rest of 7218 immigrants are asylum seekers. 1,226 immigrants (36 percent) were

from Afghanistan, and 3,176 asylum seekers immigrants (44 percent). Then refugees

from Myanmar, 783 immigrants (23 percent), and asylum-seekers from Iran, 1,010

people. Where In 2016 , 27.204 labour from PRC’s come to Indonesia that makes the

total sum of immigrant from PRC’s who got non-permanent residence permit to

31.030 people. and up until today, 1.837 people from PRC’s have been illegally

stayed in Indonesia whether by crossing the border illegally or overstayed visa though

the cases isnt as significant as it seem as the total of Indonesian citizen is 260,581,100

in 2016 as stated in worldometer survey.

As it can be seen in the data mentioned above, now on to the list. The first one, the

higher employment rate. This may be not the reason as the indonesian rate of

unemployment is 6.2 per cent of the total work force. This phenomena happened may

be because the the lack of human resources as based on the PISA (Program for

International Student Assessment) on 2015 placed Indonesia’s Education level of its

people 69 from 76 nation and this data prove to be a real threat as because of its low


education level makes indonesian workforce competitiveness low and prone to lose in

competition to other nation’s people furthermore in the more globalized country

where technology has become so advanced will swallow people who left behind (Abe,

2015).

The second one, more wealth. Perhaps if wealth is classified not only by the nation’s

GDP but also its natural resources then Indonesia would win as Indonesia can produce

more than 911.000 barrel of oil in 2016 not to mention the gold mine in tembaga pura,

timika.

The second factor and in relation to fourth, good climate and seventh, more fertile

land perhaps the most charm that attracted many immigrant to come to Indonesia

combined then with Safer, Less Crime, the Political Stability, Lower Risk From

Natural Hazards and better services makes Indonesia a hotspot for foreigner to

immigrate not to mention in accordance to the illegal immigrant then, the most

important factor that determines why indonesia has or may become a haven for illegal

immigrant is its security on its national border that will be further explained in the

current Indonesia Immigration system.

The External Factor

The External factor, that is the cause as to why Indonesia may or have become the

hotspot for illegal immigrant from the outside of the countries itself that sometimes

had no connection to Indonesia itself or can also be called the Push Factor that is the

factor that drives the immigrant out from their country. The factor is such as :

1. lack of services

2. lack of safety

3. high crime

4. crop failure

5. drought

6. flooding

7. poverty

8. war

Those factor affect the country international competitiveness ( Blecker, 1998) For

example, how the persecution of rohingya ethnic drove them out from their homeland

and as a refugee forced to live in an alien land. In the case of illegal immigrant like

from PRC’s for example. Where the air, soil and water pollution have gone so bad as

a side effect of industrialization that makes living hardmay become factor that drives

the people to do an illegal Immigration.


The Current Indonesian Immigration System

The current Indonesian Immigration system in handling the illegal immigrant are

basically divided in to the prevention system and the rehabilitation system.

The prevention sytem, that is the mechanism that prevent the incoming illegal

immigrant whether it is an illegal immigrant that comes from crossing the border and

illegal immigrant that is immigrant that ran out of visas while in Indonesia. Based on

Law No.6 year 2011 article 13 states that the people whom will be banned to enter the

countries is :

1. On The Listed Nation's Deterrence;

2. Does Not Have A Valid Travel Documents;

3. Has A False Immigration Documents;

4. Does Not Have A Visa, Except Those Exempted From The Obligation To

Have Visa;

5. Has Given False Information In Obtaining Visa;

6. Suffering From Infectious Diseases That Endanger Public Health;

7. Committing International Crimes And Criminal Offenses That Transnational

Organized;

8. Included In The Search List To Be Captured From A Foreign Country;

9. involved in the plot againstThe Government of the Republic of Indonesia; or

10. included in the network of practices or activities involving in prostitution,

trafficking in persons, and human smuggling.

In order to enforce the rule then the government uses the rehabilitation systemthat

consist of the border control that consists of land patrol and coast control on the

nations checkpoint and assign officer not only the immigration officer but also the

excise officer to patrol on location prone to illegal crossing as the crossing doesnt

mean only human crosses but also things ( illegal smuggling ).

For the people who are captured as an illegal immigrant, there are various action

implemented on them as seen in Law No.6 Year 2011 stated below :

1. immigrant without proper documents, ran out or visas, or waiting for

deportation or in need of special treatment ( sick or pregnant ) will be held in a

detention house for maximum of 10 years

2. criminals, will be deported as soon as possible to be judged by the authorized

countries and the victim of human traficking will get special privilege such as

easier travel permit.

The immigration system explained above may seem to be good but because Law No.

6 of 2011 on immigration, that states that the illegal Immigrant can be held for a

maximum period of 10 years in immigration detention. Means a lack of resolute

action against the illegal Labor, and it is harmful that if this condition persists can


result in losses to the state Income for care of illegal immigrants care who were

detained or soon-to-be deported. And regarding to the refugees, which is not even

mentioned in the law or the victim of human traficking may seem to be hard to

implement as the cause is that the refugees are most likely influenced by the push

factor like what happened with the rohingya ethnic so that means that deporting the

refugees back to their home country will be the same as sending them to die and te

same happened to the victim of the human trafficking as some of the victim even sold

out by their families or didnt have a place to return to.

Adapting The Immigration System Through Various Nation’s System

after explaining the system of handling the illegal immigration in Indonesia and its

weaknessess then the next is how to make a better law of immigration law in

Indonesia / in order to answer that the author would like to use the comparative law

using various nation’s immigration law.

The first one is the united states, as a wealthy state with over than 16.77 trillion USD

as of 2013 being pioneer in economy (Bowles, 1998), the united states have major

problem that also need to be solved and that is regarding the illegal immigrant that

majorly came from mexico. Almost 46,627,102 people came to united states as an

immigrant, not including the illegal one based on the USDHS and that is almost 14

per cent of the total united states population.

One question surfaced, if the amount of the immigrant that much so how does the

united states still stand firm ?

The answer is actually pretty simple as the reason why the illegal immigrant came to

the country is to make a better living and to achieve that they need a job. And Illegal

immigrants are generally not allowed to receive state or local public benefits, which

includes professional licenses.( Bowles, 2012)

This proffesional licenses are the most required licenses to get a job. Even a job as a

bartender need a proffesional licenses and without it the illegal immigrant whether

they want or not must do a hard labour job to continue living (Jennifer, 2016).

This hard labour job that the immigrant do is the very constitutional system that

makes united states able to stay firm. Though to this immigrants comes many threats

as idelogy and drug and weapon smuggling are prone to happen.


The second country as a comparison, is the People’s Republic of China ( PRC’s) .

Illegal immigration in China is a major problem, particularly with North Korean

refugees and defectors fleeing their country as their borders are close. The Chinese

government actively discourages this type of behavior out of fears that it may cause

instability in the region and encourage more illegal immigration. The government has

been criticized for its aggressive approach to illegal immigration.

China even build a security barrier along its border with North Korea to prevent the

defectors or refugees from North Korea. This case and Also, added with many

immigrants from Mongolia have tried to make it to China. There might be as many as

100,000 Africans and Arabs in Guangzhou, mostly illegal overstayers. The

differences to Indonesian system is that To encourage people to report foreigners

living illegally in China, the police are giving a 100 yuan reward to whistleblowers

whose information successfully leads to an expulsion.

C. THE BEST MODEL FOR INDONESIAN IMMIGRATION SYSTEM

Based on the comparation law then it can be concluded a following changes that

should be implemented to the Indonesia’s immigration system on handling the illegal

immigrant. The first one being the illegal immigrant that is refugees. Problems arise

because the government is not responsive in dealing with refugees or asylum seekers.

Because Indonesia has not ratified the 1951 International Convention and the 1967

Protocol on the Status of Refugees, the government could not immediately determine

the status of immigrants as asylum seekers or refugees as Determination of the status

is done by the UNHCR (the UN High Commission for Refugees), which takes a long

time.

This condition is further worsen by the lack of national instruments governing the

same subject. Indonesia does have law No. 37 of 1999 on Foreign Relations, which

mandates on refugees and asylum seekers. but that provision should have been

implemented by the government by issuing a Presidential Decree (Decree).

Unfortunately there is already much years passed, the decree does not turn up.

As a result, when there is a group of foreigners who enter the territory of Indonesia

they are categorized as illegal immigrants who commit administrative violations of

immigration as Act 6 of 2011 on Immigration. Finally, the strangers were grouped

together and placed in immigration detention house therefore it should be retified or

repaired immediately.


The second one basic on the united states system that gives the professional licenses

to jobs excluding the hard-manual abour may as well be calculated but because of the

low education in Indonesia where many of the citizen live by doing hard labor then,

by applying this would result in a direct competition in the hard manual labour

employment therefore it should be ruled out.

The third and the last that is the money award system given to the citizen who act as a

whistleblowers whose information successfully leads to an expulsion can also be

implemented as it is an effective system that uses the community itself to find the

illegal immigrant rather than using the intel officer.

CONCLUSION

Based on the discussion presented above it can be concluded that The concept of

nationalism is a neccessity in need to be understandable deeply as it is actually acts as

a natural defense against illegal immigrant because nationalism itself are usually

limited to one ethnic, cultural, religious, or identity group, or that multinationality in a

single state should necessarily comprise the right to express and exercise national

identity even by minorities. The factor that drives the people to do immigration is

internal and external factor. The internal factor such as the nation’s wealthy land and

resources is the factor that drives them to com to the country and the external factor or

push factor are the factor that drives the immigrant out from their countries such as

seen in the rohingya ethnic cases.

As seen in the statement above, therefore in order for Indonesia to get a better

immigration law in handling the illegal immigrant must either ratify the 1951

International Convention and the 1967 Protocol on the Status of Refugees, or

presidential decree for the law No. 37 of 1999 on Foreign Relations so that the

government can immediately identify whether or not one is a illegal immigrant or a

refugees or asylum seeker.

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